Socio-Legal Discussion Group: Sustainability Challenges of EU Competition Law and Policy

This session is also available online via Zoom.

The CSLS discussion group is organized by students, with each session focused on a different research topic, presented by internal or external speakers.

Qiandai Wang, MPhil in the Centre for Socio-Legal Studies

This paper examines the intersection between sustainability and EU competition law and policy, focusing on how the recent revisions of Horizontal Guidelines 2023 (HGs 2023) and the Agricultural Guidelines 2023 may signal a shift towards DG Competition incorporating ecological concerns. The paper analyses the challenges that arise from the focus of EU competition law and policy on safeguarding market competition, consumer welfare and economic growth, often overlooking environmental issues.

In doing so, this paper identifies key developments in DG Competition’s assessment of sustainability agreements and explores how concepts of competition and consumer welfare are evolving in a transition to a circular economy, following the European Green Deal. Using discourse analysis, the paper analyses responses during a public consultation about the draft HGs 2023, as well as policy briefs, speeches and reports from the Commission. It reveals how DG Competition prioritised discourses while marginalising the others.

Despite acknowledging the positive environmental impact of and having introduced ‘collective benefits’, the HGs 2023 continue to frame environmental interests through the lens of economic efficiency and a limited consumer identity. In contrast, the Agricultural Guidelines 2023 demonstrate a more lenient approach towards tolerating limits to competition and imposing fewer requirements to compensate consumers for anticompetitive harm. A comparison with the HG 2001 shows that the earlier framework applied less stringent economic efficiency tests and had a broader view of consumer welfare to incorporate environmental interests.

Hence, this paper highlights the limited ambition of DG Competition’s efforts to integrate sustainability. The DG competition remains reluctant to address the fundamental issues of overproduction, overconsumption and a growth strategy based on neo-classical economics. The paper contributes to the growing debate on the role of competition law in the EU’s ecological transition, offering a critical perspective on the DG Competition’s refusal to embrace sustainability as a key objective.

Prof Eckart Wolfgang Bueren

Sustainability and competition law – the German experience in European context 

For some time now, there has been a debate in German competition law about how and to what extent sustainability concerns can and should play a role in cartel, abuse of dominance and merger proceedings. Most academics and practitioners in Germany share the view that sustainability and competition law do not usually collide. Nevertheless, conflicts can arise in situations of market failure. The presentation offers a brief overview of the legal provisions relevant for dealing with these in competition law matters. While German competition law used to contain sustainability related exemptions, these have gradually been abolished. In addition, compared with older cases, the German Federal Cartel Office (FCO) has by now taken a more restrictive view on the extent to which sustainability issues can be considered when applying competition law. The presentation then summarizes case law of German authorities and courts to shed light on how competition and sustainability objectives can be reconciled, focusing on sustainability as both a sword and a shield. The presentation then goes on to provide an overview of reform proposals for the upcoming 12th amendment to the German Act against Restraints of Competition, which has been announced to introduce, inter alia, a provision on sustainability but which fate seems uncertain at the moment. Finally, the presentation will briefly mention open questions resulting from the interplay of competition law with other areas of economic law concerning sustainability matters.